Will the Unconstitutional Gun Bill Put Conceal-Carry Back with DOR?

I’ve not shied away from explaining my constitutional objection to the so-called Second Amendment Preservation Act. The bill is plainly unconstitutional and has no chance of being upheld. A federal court of appeals recently struck a similar (but not as constitutionally offensive) statute from Montana. Robert Levy, chairman of the Cato Institute’s board of directors told the New York Times that only “a few really radical self-proclaimed constitutional authorities” think it has a chance. And there’s not a single case in two centuries of constitutional case law in which a federal appellate court has upheld a single state’s authority to (1) declare a federal statute unconstitutional on its own, and (2) criminalize the enforcement of a federal law by federal agents.

Never mind those pesky facts, however, cry the proponents of the bill. Constitutional torpedoes be-damned, full-steam ahead!

But, in looking a little closer at the bill, I think there’s at least one other problem worthy of a long second look: passing HB 436 in veto session may undo SB 75, a bill which was passed at least partly in response to revelations that the Department of Revenue shared sensitive conceal-carry permit data with federal authorities.

Senate Bill 75 transfers responsibility for conceal-carry permits from the Department of Revenue to local sheriffs. Gov. Nixon signed the bill and it took effect on August 28, just as every other signed bill does.

SB 75’s transfer of responsibility for conceal carry can be found in §571.101 and §571.107, among other places. HB 436 also modifies those sections – but in different ways. Rather than track the language of SB 75, HB 436 makes its changes from the version of those statutes as they existed in May of this year.

The Missouri constitution, statues, and case law are clear on how courts interpret changes to statutes in different bills passed at the same time. In most states, the bill which is signed last is the one that governs to the extent it is any different than the previous bill. In Missouri, however, Art. III, Sec. 29 of the state constitution declares that no law shall take effect “until ninety days after the adjournment of session.” Section 1.130 further clarifies that all laws take effect “ninety days after the adjournment of the session at which it is enacted.” In Berdella v. Pender, the Missouri Supreme Court explained that the typical “later in time rule” does not apply because under the Missouri Constitution and §1.130, bills passed in the same legislative session have “the same effective date” so that a later signed bill does not negate the earlier signed bill.

Had Gov. Nixon signed both SB 75 and HB 436, there’s no doubt that the statutes would be capable of reconciliation because they would have taken effect on the same day and changed different parts of the same statutes.

Gov. Nixon, however, did not sign both bills. Senate Bill 75 took effect on August 28 – immediately changing the statute. When the legislature re-convenes for veto session and considers HB 436, we will be voting on language for §571.101 and §571.107 that matches the old statute, not the existing statute.

Because the underlying statute has changed, there’s a real question whether HB 436, which is based from the old statute, will put conceal-carry responsibility back with the Department of Revenue. To my knowledge, it is a question for which there is no precedent in Missouri history and no direct guidance.

In order for the override of HB 436 to not hit the re-set button on conceal-carry permits, it appears a court would have to either:

1. Engage in the legal fiction that the effective date of legislation passed in a veto session is the same as the effective date as a bill passed in regular session – even if that requires a special legislation time-machine as it would in this case.

2. Rule that the language in legislation that does not change the current statute has no legal impact. In other words, a court would have to rule that some words have no meaning because the legislature is really only voting on the bolded, underlined, or [bracketed] words in a bill.

or

3. Engage in an analysis on legislative intent and rule that clearly the intent of the legislature was not to undo SB 75. The problem with this approach is that Missouri courts traditionally shun analysis of legislative intent – and there is not legislative history in Missouri as there is with the federal government. Moreover, from a conservative perspective, courts which take off on legislative intent hunts veer from their proper constitutional role. As explained by Justice Scalia:

The Constitution gives legal effect to the ‘Laws’ Congress enacts, not the objectives its Members aimed to achieve in voting for them… [I]t is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of ‘history’ that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.”Graham County Soil v. U.S.

In this case, to get at the legislative intent, a court has to take an eraser to actual words in the bill itself.

It seems to me that a reasonable and conservative position a court could take would be to rule that (1) there are no legislative time machines, and (2) words have meaning. Under this interpretation, HB 436 would effectively overturn SB 75 and return responsibility for conceal-carry permitting back to the Department of Revenue.

But again, we are in uncharted territory here. A court could certainly rule otherwise. And maybe there’s a case from another state that’s on point or relevant? At the very least, it’s a fascinating legal question.